Equal Emp't Opportunity Comm'n v. Bass Pro Outdoor World, LLC, Case No. 4:11–CV–3425.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Writing for the Court: KEITH P. ELLISON, District Judge.
• Citation: 35 F.Supp.3d 836
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BASS PRO OUTDOOR WORLD, LLC, and Tracker Marine, LLC, Defendants.
• Docket Number: Case No. 4:11–CV–3425.
• Decision Date: 30 July 2014

35 F.Supp.3d 836

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff
v.
BASS PRO OUTDOOR WORLD, LLC, and Tracker Marine, LLC, Defendants.

Case No. 4:11–CV–3425.

United States District Court, S.D. Texas, Houston Division.

Signed July 30, 2014.

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Connie Kay Wilhite, Rodolfo Lucio Sustaita, Timothy M. Bowne, EEOC, Houston, TX, Gregory T. Juge, U.S. EEOC, New Orleans, LA, Konrad Batog, Robert D. Rose, U.S. EEOC, New York, NY, Tanya L. Goldman, U.S. EEOC, Baltimore, MD, for Plaintiff.

Michael W. Johnston, Carolyn Cain Burch, Samuel M. Matchett, King Spalding LLP, Atlanta, GA, William Robert Burns, King and Spalding LLP, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Now pending before the Court are the Equal Employment Opportunity Commission's (“EEOC's” or “the Commission's”) Motion for Reconsideration and a Renewed Motion for Summary Judgment on behalf of Defendants Bass Pro Outdoor World, LLC and Tracker Marine, LLC (“Defendants” or “Bass Pro”). The Motion for Reconsideration¹ presents the

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question whether the EEOC may, in a lawsuit initiated by a Commissioner's Charge and brought pursuant to 42 U.S.C. § 2000e–5 (§ 706 of Title VII), rely on the standard of proof set forth by the Supreme Court in Franks v. Bowman Transportation Company, Inc., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), and International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Though it did not consider the issue in quite these terms, the Court essentially answered in the negative in an earlier Memorandum and Order. 884 F.Supp.2d 499 (S.D.Tex.2012) (Doc. No. 53.) The EEOC has several times asked the Court to revisit that determination. Having reviewed all new submissions and the relevant case law, the Court concludes that its earlier ruling was in error and that, subject to constraints imposed by the Seventh Amendment and basic manageability factors, the Commission can employ the Teamsters framework to prove its § 706 claims.

In the second part of this Order, the Court considers Bass Pro's Renewed Motion for Summary Judgment, in which Defendant reiterates its request that the Court dismiss the lawsuit on account of the EEOC's purported failure to satisfy its pre-suit obligations. Bass Pro advances three principal arguments: that the Court was mistaken in concluding that the EEOC had not acted in bad faith in the course of conciliating its § 706 claims; that, regardless of how the Commission conducted itself in the first conciliation period, it exhibited bad faith during the recent stay; and that the EEOC failed adequately to investigate its claims before filing suit. After careful consideration of all three—the third in particular—the Court DENIES Bass Pro's Motion.

The disputes presented by these two motions reflect a fundamental disagreement as to the role that the Commission is to play in the vindication of rights guaranteed by Title VII and the scope of its authority to represent those who may have been aggrieved by unlawful employment practices. This clash appears to present itself in a great number of Title VII suits in which the EEOC is involved. Yet, despite the frequency with which these questions arise, the lower courts have been driven by disagreement—as to the ultimate answers, yes, but more vexingly, as to the proper way of thinking about the issues. Indeed, this is an area of law ripe for further illumination from the appellate courts. All of this is to say that, while the Court ultimately sides with the EEOC on both Motions, it is fully sensitive to the strength of the antithesis.

I. PROCEDURAL BACKGROUND

A more exhaustive account of the relevant procedural background was set forth in this Court's most recent Memorandum and Order. (Doc. No. 151.) To summarize, the EEOC first filed suit in September 2011, alleging a “pattern or practice of unlawfully failing to hire Black and Hispanic applicants” and unlawful retaliation against individuals who opposed Bass Pro's practices. (Doc. No. 1.) The Commission filed an Amended Complaint in January 2012 (Doc. No. 23) and Defendants moved to dismiss soon thereafter (Doc. No. 32). In the Order that is the subject of this Motion to Reconsider—and discussed in more detail below—this Court granted in part and denied in part the Motion to Dismiss. (Doc. No. 53, 884 F.Supp.2d at 509.)

The Commission again amended its complaint. (See Doc. No. 61.) The Second Amended Complaint described the

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EEOC's allegations in far greater detail than ever before, including descriptions of many of the individuals on whose behalf the Commission was pressing claims. Defendants filed another motion to dismiss, which the Court again granted in part and denied in part. EEOC v. Bass Pro Outdoor World, LLC, No. 4:11–CV–3425, 2013 WL 1124063 (S.D.Tex. Mar. 18, 2013) (Doc. No. 99). The Court granted leave to amend, which the Commission timely did in April 2013. (Doc. No. 104.)

The parties then both filed motions for summary judgment. Arguing that the EEOC had abdicated its responsibility to conciliate in good faith, Defendants asked the Court to dismiss the lawsuit (Doc. No. 119); contending that the sufficiency of its endeavors to conciliate is not subject to judicial review, the EEOC essentially asked that the Court not consider Bass Pro's Motion (Doc. No. 137.) The Court ultimately denied both requests, though it ordered a thirty-day stay for additional conciliation of the EEOC's § 706 claims. See EEOC v. Bass Pro Outdoor World, LLC, 4:11–CV–3425, 2013 WL 5515345 (S.D.Tex. Oct. 2, 2013) (Doc. No. 149); EEOC v. Bass Pro Outdoor World, LLC, 1 F.Supp.3d 647, 4 :11–CV–3425, 2014 WL 838477 (S.D.Tex. Mar. 4, 2014) (Doc. No. 151).

Further attempts at conciliation were unsuccessful, prompting Defendants to file a Renewed Motion for Summary Judgment (Doc. No. 160). The Commission, for its part, filed a Fourth Amended Complaint and filed the instant Motion for Application of the Franks/Teamsters Model to the Section 706 Class Hiring Claim (Doc. No. 172).

II. MOTION FOR RECONSIDERATION²

A.

In its March 2012 Motion to Dismiss, in the course of arguing for dismissal of the EEOC's claims brought pursuant to § 706, Defendants “accuse [d] the EEOC of attempting, impermissibly, to bring a pattern or practice claim pursuant to § 706 so that it can recover compensatory and punitive damages based on an Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 [97 S.Ct. 1843, 52 L.Ed.2d 396] (1977), model.” (Doc. No. 53, 884 F.Supp.2d at 510.) Defendants explained that they “oppose[d] the EEOC's attempt to merge § 706 and § 707 into a single, non-existent ‘hybrid’ claim.” (Id. at 510.)

In response, “[t]he EEOC insist[ed] that it c[ould] invoke the Teamsters model of proof to establish a pattern or practice of

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hiring discrimination under either § 706 or § 707,” noting that “the language of § 706 does not circumscribe the EEOC's enforcement authority to only individual disparate treatment claims.” (Id. at 511.) The EEOC “accuse[d] Defendants of conflating proof models with causes of action,” adding that “it does not allege a violation of § 706 or § 707 —which constitute Title VII's enforcement provisions—but rather a violation of § 703, 42 U.S.C. § 2000e–2.” (Id. at 511.)

After considering those arguments and surveying relevant case law, the Court decided that “the EEOC cannot bring a hybrid pattern or practice claim that melds the respective frameworks of § 706 and § 707.” (Id. at 520.) To that end, the Court “interpret[ed] § 706 to not provide a vehicle for pattern or practice claims.” (Id. ) It did not agree with Plaintiff that the Supreme Court's decision in General Telephone Company of the Northwest, Inc. v. EEOC, 446 U.S. 318, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980), or the Sixth Circuit's decision in EEOC v. Monarch Mach. Tool Co., 737 F.2d 1444 (6th Cir.1980), counseled in favor of a holding to the contrary. (Id. ) And with that decided, the Court determined that Federal Rule of Civil Procedure 12(b)(6) required dismissal of the EEOC's § 706 claims. (Id. at 521–22.)

The EEOC has since repleaded its § 706 claims and they are no longer the subject of a Motion to Dismiss for Failure to State a Claim. Nevertheless, the Commission has asked the Court to reconsider its determination that § 706 claims cannot be proved using the Teamsters model of proof.

B.

1. Statutory Backdrop

Section 703 of Title VII of the Civil Rights Act of 1964 makes it unlawful for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). To enforce § 703, 42 U.S.C. § 2000e–4 (§ 705) creates the EEOC and “charge[s it] with the enforcement of Title VII.” Faragher v. City of Boca Raton, 524 U.S. 775, 806, 118...